On Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding D.C. No. 3:11-cr-01286-AJB-1
The opinion of the court was delivered by: Zouhary, District Judge:
Argued and Submitted November 6, 2012-Pasadena, California
Before: Alfred T. Goodwin and Diarmuid F. O'Scannlain, Circuit Judges, and Jack Zouhary, District Judge.*fn1
The panel affirmed a conviction and sentence for illegal re-entry in violation of 8 U.S.C. § 1326 in a case in which the defendant collaterally attacked the underlying removal order.
The panel rejected the defendant's arguments that his failure to exhaust his administrative remedies was excused. The panel held that under the modified categorical approach, the defendant's predicate conviction for possession of methamphetamine for sale in violation of Cal. Health & Safety Code § 11378 qualifies as a drug trafficking offense under 8 U.S.C. § 1101(a)(43)(B), where the change of plea form, the minute entry of the plea colloquy, and the abstract of judgment all show that the defendant pleaded guilty to the § 11378 count charging possession for sale of methamphetamine. The panel held that the defendant was not denied his due process right to counsel during removal proceedings and that because he has not demonstrated a plausible claim for relief from the removal order, he was not prejudiced by any such denial.
The panel held that the defendant's § 11378 conviction is categorically a drug trafficking offense supporting a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A), and that the conviction would also qualify for the enhancement under the modified categorical approach.
The panel held that the district court's imposition of supervised release is substantively reasonable, notwithstanding U.S.S.G. § 5D1.1(c) (2011) (providing that supervised release should not "ordinarily" be imposed in a case in which the defendant is a deportable alien who likely will be deported after imprisonment), where the district court gave a specific and particularized explanation that supervised release would provide an added measure of deterrence and protection based on the facts of this case.
Jorge Valdavinos-Torres ("Valdavinos") was ordered removed in 2008 after immigration court proceedings. Sometime after his removal, Valdavinos returned to the United States without permission, and in 2010 was arrested and convicted for possession of methamphetamine in violation of California law. After serving a short jail sentence, Valdavinos was turned over to immigration officials and eventually indicted for illegal re-entry in violation of 8 U.S.C. § 1326. Following a conditional guilty plea, Valdavinos was convicted and sentenced to 46 months in custody and two years of supervised release.
Valdavinos appeals his conviction and sentence, claiming the district court erred in denying his motion to dismiss the indictment. Valdavinos also argues the record failed to prove that the drug trafficking conviction leading to his 2008 deportation was a controlled substance offense qualifying for a sixteen-level sentencing enhancement. Lastly, Valdavinos challenges the district court's imposition of supervised release.
This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and for the reasons set forth below, we AFFIRM the judgment of the district court.
An indictment filed on April 6, 2011 charged Valdavinos with a single count under 8 U.S.C. §§ 1326(a) and (b) for being a deported alien in the United States. In early June 2011, Valdavinos filed a motion to dismiss the indictment, arguing his previous deportation was invalid under 8 U.S.C. § 1326(d). The motion was fully briefed, and the district court held a hearing on June 24, 2011, which culminated in the denial of Valdavinos' motion. The district court confirmed its ruling in an order dated June 27, 2011.
On July 14, 2011, Valdavinos entered a conditional guilty plea to the charged offense, reserving the right to challenge the denial of his motion to dismiss, as well as his sentence. A pre-sentence investigation report was filed, and the Government filed a sentencing summary chart. Valdavinos also filed a sentencing summary chart, which asserted his prior conviction for possession of methamphetamine in violation of California law was not a deportable "aggravated felony" under 8 U.S.C. § 1101(a)(43)(M).
On December 9, 2011, the district court sentenced Valdavinos to 46 months in prison, followed by two years of supervised release. The court entered its final judgment on December 14, 2011, and Valdavinos filed his notice of appeal that same day.
On October 20, 2010, the San Diego Sheriff's Department arrested Valdavinos, an adult citizen of Mexico, in Vista, California, for possession of methamphetamine in violation of Cal. Health & Safety Code § 11377(a). Valdavinos was booked into the county jail immediately following his arrest. While there, Immigration and Customs Enforcement ("ICE") agents determined Valdavinos was a deported alien who had not applied for permission to re-enter the United States. An immigration detainer was lodged that same day, meaning ICE officials intended to seek future custody of Valdavinos. Valdavinos was eventually convicted of the Section 11377(a) offense, and on November 2, 2010, was sentenced to 180 days in jail.
In mid-February 2011, Valdavinos was released from jail and transferred to ICE custody. A records check confirmed Valdavinos was a deported alien who had not applied for re-entry. Specifically, Valdavinos had been ordered removed from the United States by a January 29, 2008 administrative order, and was physically removed that same day through the San Ysidro, California Port of Entry. On April 6, 2011, a grand jury indicted Valdavinos for being a deported alien in the United States in violation of 8 U.S.C. §§ 1326(a) and (b).
On June 8, 2011, Valdavinos moved to dismiss the one-count indictment under 8 U.S.C. § 1326(d) on the grounds that his 2008 deportation was invalid. The district court held a hearing on the motion, during which the parties focused on whether the drug conviction that led to Valdavinos' 2008 deportation was in fact a deportable offense. The dispute centered on Valdavinos' September 2007 conviction for possession of methamphetamine for sale in violation of Cal. Health & Safety Code § 11378. According to the Government, that conviction was a controlled substance offense qualifying as an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(B), which includes drug trafficking crimes as aggravated felonies. Therefore, the Government argued Valdavinos was properly deported because an alien "convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii).
Not all convictions under Section 11378 qualify as drug trafficking offenses because, as this Court recognized in Ruiz-Vidal v. Gonzales, 473 F.3d 1072 (9th Cir. 2007), not all substances punishable under California law are defined as controlled substances under federal law. Because the plea form for his 2007 conviction does not state he pled guilty specifically to trafficking a controlled substance as defined by federal law, Valdavinos argued his conviction lacked a factual basis showing it was a drug trafficking offense and thus an "aggravated felony." He based his argument on People v. West, 477 P.2d 409 (Cal. 1970), which held a guilty plea to an offense does not necessarily mean the defendant admits the facts alleged in the indictment.
Rebutting Valdavinos' position, the Government noted he pled guilty specifically to Count Two of the Complaint, which unequivocally identified the controlled substance at issue as methamphetamine. Methamphetamine, of course, qualifies as a controlled substance under federal law. See 21 U.S.C. §§ 802(6), 812(a)(3) sched. III. Therefore, although the factual basis in Valdavinos' plea form merely stated "Peo. v. West," when read in conjunction with the Complaint, it became clear the controlled substance at issue was ...